Devine v. LeGrand et al

Filing 21

ORDERED that the petition (ECF No. 7 ) is DENIED in its entirety. FURTHER ORDERED that a certificate of appealability is DENIED. FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case. Signed by Judge Robert C. Jones on 3/30/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMIERL DEVINE,

Case No. 3:14-cv-00130-RCJ-VPC

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Petitioner,

ORDER

v.
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WARDEN BACA, et al.,
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Respondents.
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This pro se 28 U.S.C. § 2254 habeas petition by petitioner Jamierl Devine is

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before the court for adjudication on the merits (ECF No. 7).

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I.

Background & Procedural History

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On February 1, 2010, the State charged Devine in the Eighth Judicial District

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Court, Clark County, Nevada, by information with count 1: conspiracy to commit

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robbery; count 2: burglary; and count 3: robbery (exhibit 7).1 Devine pled not guilty.

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See exh. 6 (2/11/10). He was represented by Michael Sanft unless otherwise noted.
On October 12, 2010, the date set for trial, the parties informed the court that

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they had reached an agreement. Exh. 15. Devine pled guilty to the three counts

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contained in the information, and the State agreed not to pursue habitual criminal

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enhancement. Id.; see exh. 16.
At the time scheduled for sentencing, Devine informed the court that he did not

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want to go forward and stated that Mr. Sanft was ineffective. Exh. 18. The court

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Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 10, and are
found at ECF Nos. 11-13.

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appointed Cynthia Dustin to represent petitioner. Id. On February 8, 2011, Ms. Dustin
informed the court that after reviewing the file and speaking with Devine, she concluded
that he did not meet the threshold to withdraw his plea. Exh. 22. Ms. Dustin requested
to withdraw from the matter and requested the re-appointment of Mr. Sanft for
sentencing, which the court granted. Id.

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On February 17, 2011, the court sentenced Devine as follows: count 1 - 28 to 72
months; count 2 – 48 to 120 months, concurrent to count 1; and count 3 - 72 to 180
months, concurrent to count 2 and concurrent to the possession of a stolen vehicle
case. Exh. 24. The court filed the judgment of conviction on March 9, 2011. Exh. 25.
Devine did not file a direct appeal. See Exh. 40, p. 2.

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On September 23, 2011, Devine filed a proper person postconviction petition for
writ of habeas corpus in state district court. Exh. 35. On July 25, 2012, the Nevada
Supreme Court affirmed the district court’s denial of the petition in part, reversed in part
and remanded the matter to the district court. Exh. 48. The court held that the district
court did not err in denying petitioner’s allegations that trial counsel failed to address a
violation of his Miranda rights, failed to prepare a defense for trial or failed to maintain
contact with petitioner. The state supreme court reversed and remanded for an
evidentiary hearing on petitioner’s claim that trial counsel failed to inform him of a plea
offer prior to the preliminary hearing. Id. Remittitur issued on August 20, 2012. Exh.
49.

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On February 14, 2013, the state district court held the evidentiary hearing; at the
conclusion of the hearing, the court denied the petition. Exh. 55. The court filed written
findings of fact, conclusions of law and order denying the petition on March 12, 2013.
Exh. 57. The Nevada Supreme Court affirmed the state district court’s denial of the
petition on September 18, 2013, and remittitur issued on October 14, 2013. Exhs. 66,
67.

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Petitioner dispatched his federal petition for writ of habeas corpus on or about
March 5, 2014 (ECF No. 7). This court granted respondents’ motion to dismiss in part
and dismissed grounds 1 and 2 (ECF No. 18). Respondents have now answered the
remaining ground, ground 3 (ECF No. 20).
II.

Legal Standards

a.

Antiterrorism and Effective Death Penalty Act (AEDPA)

28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty
Act (AEDPA), provides the legal standards for this court’s consideration of the petition in
this case:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim ―
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
The AEDPA “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 693-694 (2002). This Court’s ability to grant a writ is limited to cases where “there
is no possibility fair-minded jurists could disagree that the state court’s decision conflicts
with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The
Supreme Court has emphasized “that even a strong case for relief does not mean the
state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing
the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the
doubt”) (internal quotation marks and citations omitted).
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A state court decision is contrary to clearly established Supreme Court
precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that
contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state
court confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from [the Supreme
Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362,
405-06 (2000), and citing Bell, 535 U.S. at 694.
A state court decision is an unreasonable application of clearly established
Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court
identifies the correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538
U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause
requires the state court decision to be more than incorrect or erroneous; the state
court’s application of clearly established law must be objectively unreasonable. Id.
(quoting Williams, 529 U.S. at 409).
To the extent that the state court’s factual findings are challenged, the
“unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas
review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause
requires that the federal courts “must be particularly deferential” to state court factual
determinations. Id. The governing standard is not satisfied by a showing merely that the
state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires
substantially more deference:

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.... [I]n concluding that a state-court finding is unsupported by
substantial evidence in the state-court record, it is not enough that we
would reverse in similar circumstances if this were an appeal from a
district court decision. Rather, we must be convinced that an appellate
panel, applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the record.

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Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393
F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be
correct unless rebutted by clear and convincing evidence. The petitioner bears the
burden of proving by a preponderance of the evidence that he is entitled to habeas
relief. Cullen, 563 U.S. at 181.
b.

Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are governed by the two-part test
announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the
Supreme Court held that a petitioner claiming ineffective assistance of counsel has the
burden of demonstrating that (1) the attorney made errors so serious that he or she was
not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the
deficient performance prejudiced the defense. Williams, 529 U.S. at 390-91 (citing
Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness. Id. To
establish prejudice, the defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. A reasonable probability is “probability sufficient to undermine confidence in
the outcome.” Id. Additionally, any review of the attorney’s performance must be “highly
deferential” and must adopt counsel’s perspective at the time of the challenged conduct,
in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the
petitioner’s burden to overcome the presumption that counsel’s actions might be
considered sound trial strategy. Id.
Ineffective assistance of counsel under Strickland requires a showing of deficient
performance of counsel resulting in prejudice, “with performance being measured
against an objective standard of reasonableness, . . . under prevailing professional
norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations

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omitted). When the ineffective assistance of counsel claim is based on a challenge to a
guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate “that
there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
59 (1985).
If the state court has already rejected an ineffective assistance claim, a federal
habeas court may only grant relief if that decision was contrary to, or an unreasonable
application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003).
There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id.
The United States Supreme Court has described federal review of a state
supreme court’s decision on a claim of ineffective assistance of counsel as “doubly
deferential.” Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 129 S.Ct. 1411,
1413 (2009)). The Supreme Court emphasized that: “We take a ‘highly deferential’ look
at counsel’s performance . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403
(internal citations omitted). Moreover, federal habeas review of an ineffective assistance
of counsel claim is limited to the record before the state court that adjudicated the claim
on the merits. Cullen, 563 U.S. at 181-84. The United States Supreme Court has
specifically reaffirmed the extensive deference owed to a state court's decision
regarding claims of ineffective assistance of counsel:

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Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,” id. at
689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review
is “doubly” so, Knowles, 556 U.S. at ––––, 129 S.Ct. at 1420. The
Strickland standard is a general one, so the range of reasonable
applications is substantial. 556 U.S. at ––––, 129 S.Ct. at 1420. Federal
habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is whether there is any
reasonable argument that counsel satisfied Strickland's deferential
standard.
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Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance
of counsel must apply a ‘strong presumption’ that counsel’s representation was within
the ‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland,

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466 U.S. at 689). “The question is whether an attorney’s representation amounted to
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incompetence under prevailing professional norms, not whether it deviated from best
practices or most common custom.” Id. (internal quotations and citations omitted).

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III.

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Ground 3

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Instant Petition

Devine asserts that his counsel was ineffective for failing to convey to Devine a plea
deal of 1 to 6 years for conspiracy to commit robbery offered at the preliminary hearing

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(ECF No. 7, pp. 9-11). Devine alleges that immediately prior to the preliminary hearing
his attorney informed him that he faced habitual criminal treatment and advised Devine

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to proceed with the preliminary hearing and try to get a better deal from the State later.

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He alleges that he learned of the plea offer during jury selection and that his attorney

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insisted that he had told Devine about the offer. He claims that but for counsel’s failure

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to apprise him of the offer, he would have accepted the (more favorable) offer prior to
the preliminary hearing. Id.

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Defense counsel has a duty to communicate formal plea offers to the client.

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Missouri v. Frye, 566 U.S. 133, 145 (2012). In order to demonstrate prejudice under

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Strickland, where a plea offer has lapsed or been rejected because of counsel’s

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deficient performance, a petitioner must show a reasonable probability that he would

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have accepted the more favorable plea but for counsel’s ineffective assistance and that

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the plea would have been entered without the State canceling the offer or the state

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district court refusing to accept it. Id. at 147.
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In its order affirming the denial of this claim, the Nevada Supreme Court stated that

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the state district court credited Devine’s counsel’s testimony at the evidentiary hearing

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on the postconviction petition. Exh. 66, p. 2. The state district court found, based on

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that testimony, that counsel in fact conveyed the offer to Devine who declined it and
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proceeded with the preliminary hearing. Id. The state supreme court concluded that

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the record supported the district court’s factual findings and its legal conclusions were

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sound. Id.

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The state-court record reflects the following. At the evidentiary hearing, the parties
stipulated that on December 28, 2009, the State offered a deal wherein Devine would
plead guilty to conspiracy to commit robbery in this case and to attempted possession of

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a stolen vehicle in another case, with four other cases being dismissed. Exh. 55, pp. 45. The conspiracy to commit robbery carried a potential sentence of 1 to 6 years, and
the State would not oppose concurrent sentences. Id. at 4-5, 12.

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Devine’s counsel testified at the hearing that he specifically recalled that when he

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received the surveillance video from the bar of the incident it was clear that the defense

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would have some “major issues” if Devine went to trial. Id. at 8-18. The day of the
preliminary hearing, he sat down with Devine and told Devine that he should accept the

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offer. He pointed out to Devine that the alleged victim was present and prepared to

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testify at the hearing. Counsel testified that Devine said that he did not want to take the

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offer. Id. at 9-10. Counsel reiterated that Devine refused the deal at the preliminary

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hearing and later accepted a different plea deal. Id. Counsel did not recall Devine

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wanting to take a deal, nor did he recall telling Devine that the State’s final offer was

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“[expletive] up because they offered you a one to six prior to the preliminary hearing.”

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Id. at 13. Nor did counsel recall Devine indicating that he was hearing about that offer
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for the first time. Id. Counsel testified in detail that it is his custom and practice to talk

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about a plea deal before the preliminary hearing. Id. at 10.

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Devine also testified; he stated that, aside from immediately prior to the preliminary

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hearing, he had no contact, whatsoever, with his counsel before or after the preliminary
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hearing. Id. at 18-22. He testified that when he met with counsel prior to the

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preliminary hearing, counsel did not convey any plea offer. He stated that he would

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have accepted an offer of one to six years and also would have accepted an offer of two

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to fifteen years. Id.

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At the conclusion of the evidentiary hearing, the state district court denied the
petition, explaining its findings: “I can tell you what the rationale is, that based on what I

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heard today, I believe that [defense counsel] conveyed the offer to [Devine], and
[Devine] rejected it. That’s all that has to be shown, is that the offer was conveyed and
that it was rejected. Obviously, I made a credibility decision.” Id. at 25.
This court concludes that Devine has failed to demonstrate that the Nevada
Supreme Court’s decision on this claim was contrary to or an unreasonable application
of Strickland. Accordingly, federal ground 3 is denied.
The petition, therefore, is denied in its entirety.

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IV.

Certificate of Appealability

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This is a final order adverse to the petitioner. As such, Rule 11 of the Rules

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Governing Section 2254 Cases requires this court to issue or deny a certificate of

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appealability (COA). Accordingly, the court has sua sponte evaluated the claims within

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the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.

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Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).

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Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has
made a substantial showing of the denial of a constitutional right." With respect to
claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists

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would find the district court's assessment of the constitutional claims debatable or
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wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463

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U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable

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jurists could debate (1) whether the petition states a valid claim of the denial of a

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constitutional right and (2) whether the court's procedural ruling was correct. Id.

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Having reviewed its determinations and rulings in adjudicating Devine’s petition, the
court finds that reasonable jurists would not find its determination of any grounds to be

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debatable pursuant to Slack. The court therefore declines to issue a certificate of
appealability.
V.

Conclusion

IT IS THEREFORE ORDERED that the petition (ECF No. 7) is DENIED in its
entirety.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and

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close this case.

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DATED: 30 March 2017.
ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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